will carefully inquire whether the threatened act of the officer is beyond his proper discretion. If not, the injunction will be refused.122

REMOVAL.

88. Generally, the power of removal is an incident of the power of appointment; and, where an officer holds during the will and pleasure of the appointing power, that power is also the removing power, and is sole judge of the propriety of removal.

The legislature may authorize the removal of appointive officers at the will of the appointing power,128 but an elective officer can be removed from office only by due process of law.124 The power of removal includes the power of suspen

122 Heffran v. Hutchins, 160 Ill. 550, 43 N. E. 709, 52 Am. St. Rep. 353; Knapp, Stout & Co. Company v. St. Louis, 153 Mo. 560, 55 S. W. 104; Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610; Everett v. Deal, 148 Ind. 90, 47 N. E. 219; Fellows v. Walker (C. C.) 39 Fed. 651; Lane v. Schomp, 20 N. J. Eq. 82.

123 Armatage v. Fisher, 74 Hun, 167, 26 N. Y. Supp. 364; People V. New York, 16 Hun (N. Y.) 309; State v. Williams, 6 S. D. 119, GO N. W. 410; Christy v. Kingfisher (Okl.) 76 Pac. 135; People v. Whitlock, 92 N. Y. 191; Trainor v. Board, 89 Mich. 162, 50 N. W. 803, 15 L. R. A. 95.

In the absence of express grant or implied limitation of authority, a municipal corporation possesses the incidental power to remove for cause the corporate officers, whether elected by it or by the people. State ex rel. McMahon v. New Orleans, 107 La. 632, 32 South. 22. But see Speed v. Detroit, 98 Mich. 360, 57 N. W. 406, 22 L. R. A. 842, 39 Am. St. Rep. 555; Caulfield v. State, 1 S. C. 461; People v. McAllister, 10 Utah, 357, 37 Pac. 578; State v. Kiichli, 53 Minn. 147, 54 N. W. 1069, 19 L. R. A. 779; State v. Shearman, 51 Kan. 686, 35 Pac. 455; State v. Kennelly, 75 Conn. 704, 55 Atl. 555.

124 State ex rel. Attorney General v. Doherty, 25 La. Ann. 119, 13 Am. Rep. 131; People v. Commissioners, 106 N. Y. 64, 12 N. E. 641; Trainor v. Board, supra; Board of Aldermen v. Darrow, 13 Colo. 460, 22 Pac. 784, 16 Am. St. Rep. 215; Field v. Commonwealth. 32 Pa. 478.

sion pending trial.125 This power may be conferred either upon the mayor or the Governor of the state; 126 but in case of conviction of crime which disqualifies from holding office, the court may pronounce the sentence of disqualification and removal.127

Civil Service.

The courts also exercise control over officers in compelling the enforcement of civil service laws and rules by mandamus.128 Following the example set by Congress in 1883 in passing the Pendleton Act, New York in the same year, and Massachusetts the year following, adopted civil service rules applicable to the state, and including the municipalities thereof; and, following these, civil service laws were passed by California, Connecticut, Illinois, Indiana, Louisiana, Ohio, Pennsylvania, Washington, Wisconsin, and some other states.129 These laws are not uniform in extent or provisions, but most of them are made applicable to municipalities. Some embrace most of the appointive officers, and some only employés, excepting confidential clerks and agents. Their pur

125 State ex rel. Campbell v. Commissioners, 16 Mo. App. 48; State v. Peterson, 50 Minn. 239, 52 N. W. 655; Shannon v. Portsmouth, 54 N. H. 183. But such suspension cannot be indefinitely without pay. Gregory v. New York, 113 N. Y. 416, 21 N. E. 119, 3 L. R. A. 854. Contra, Tyrrell v. Jersey City, 25 N. J. Law, 536. 126 State v. Johnson, 30 Fla. 433, 11 South. 845, 18 L. R. A. 414; Carr v. State, 111 Ind. 101, 12 N. E. 107; State v. Kennelly, 75 Conn. 704, 55 Atl. 555; Hogan v. Collins, 183 Mass. 43, 66 N. E. 429; Commonwealth v. Crogan, 155 Pa. 448, 26 Atl. 697; Wilcox v. People, 90 Ill. 186.

127 State v. Humphreys, 74 Tex. 466, 12 S. W. 99, 5 L. R. A. 217; Mayor, etc., of City of Macon v. Shaw, 16 Ga. 172; People v. Board, 9 Hun (N. Y.) 222; Commonwealth v. Jones, 10 Bush (Ky.) 725. Contra, People v. Board, 11 Hun (N. Y.) 403; Oliver v. City Council, 69 Ga. 165.

128 Chittenden v. Wurster, 152 N. Y. 345, 46 N. E. 857, 37 L. R. A. 809.

14.

129 4 Enc. Americana, in verb; Lindblom v. Doherty, 102 Ill. App.

pose is to ensure competency of officers and employés, especially the latter. For this purpose tests by examination are prescribed by a board of commissioners provided for in the law, and vested with wide discretion to frame rules and otherwise attend to the details of the law. They are vested with official discretion, but do not exercise judicial powers, and, whenever resisted in the performance of their functions, may call the courts to their assistance.180 These acts have been challenged as unconstitutional by the dispensers of patronage and their beneficiaries, but have been generally, if not universally, sustained by the courts.131

Veteran Acts.

Civil service regulation has been attempted in the so-called "Veteran Acts" of many of the states, giving preference of appointment to soldiers of the Civil War; but the courts have been averse to sustaining and enforcing these acts in municipalities, and commentators note the distinctions between municipal governments and federal and state governments in the matter of reward for military service.182 The Veteran Act of New York has been declared unconstitutional by the Supreme Court of that state, as creating a favored class of citizens; 133 while a majority of the Supreme Judicial Court of Massachusetts has sustained the Veteran Act of that state, which gives preference only when all other things are equal.134

130 2 Smith, Pub. Corp. §§ 1715, 1719.

131 Rogers v. Common Council, 123 N. Y. 173, 25 N. E. 274, 9 L. R. A. 579; People v. Loeffler, 175 Ill. 585, 51 N. E. 785; People v. Hoffman, 116 Ill. 587, 5 N. E. 596, 8 N. E. 788, 56 Am. Rep. 793.

182 BROWN v. RUSSELL, 166 Mass. 14, 43 N. E. 1005, 33 L. R. A. 253, 55 Am. St. Rep. 357; Sullivan v. Gilroy, 55 Hun (N. Y.) 285, 8 N. Y. Supp. 401; Baker v. Delaney, 55 N. J. Law, 9, 25 Atl. 936; State v. Miller, 66 Minn. 90, 68 N. W. 732; Schoolcraft's Adm'r v. Railroad Co., 92 Ky. 233, 17 S. W. 567, 14 L. R. A. 579.

133 In re Keymer, 148 N. Y. 219, 42 N. E. 667, 35 L. R. A. 447. But see People v. Stratton, 174 N. Y. 531, 66 N. E. 1114.

134 BROWN v. RUSSELL, 166 Mass. 14, 43 N. E. 1005, 32 L. R. A. 253, 55 Am. St. Rep. 357.

PERSONAL LIABILITY-CONTRACTS.

89. Without special personal undertaking, officers are not personally liable upon contracts made by them for and on behalf of the corporation.

When contracts are formally made in the name of the corporation questions of personal liability can rarely arise, but upon parol contracts and informal written ones much litigation has arisen over the personal liability of the officers contracting. The courts have usually decided these cases upon the manifest intention of the contracting parties; 185 for example, it has been held that a note promising payment by the signers "as trustees of school district" did not bind the individual signers, but the school district.188 So, for gravel sold on the credit of a town upon the order of a surveyor of highways, with authority to purchase, the town and not the surveyor is liable.187 And generally, wherever the promise of a public officer is connected with a subject fairly within the scope of his authority, it will be presumed to have been made in his public character, unless the intention to bind himself personally is evident.188 The invalidity of the promise as a municipal contract will not make the officer personally liable without evidence of his intention to become so.189 But it has been held that an overseer of the poor makes himself personally liable by promising that he will be responsible for the payment of the charges.140 In fine, the rule is well settled that wherever the parties understand that the contract is made by the officer on behalf of the corporation, and it is within the

135 Willett v. Young, 82 Iowa, 292, 47 N. W. 990, 11 L. R. A. 115. 136 Sanborn v. Neal, 4 Minn. 126 (Gil. 83), 77 Am. Dec. 502. 137 Brown v. Rundlett, 15 N. H. 360.

138 Parks v. Ross, 11 How. (U. S.) 362, 13 L. Ed. 730; TATE V. GREENSBORO, 114 N. C. 392, 19 S. E. 767, 24 L. R. A. 671.

139 Houston v. Clay County, 18 Ind. 396; Boardman v. Hayne, 29 Iowa, 339; McCracken v. Lavalle, 41 Ill. App. 573.

140 King v. Butler, 15 Johns. (N. Y.) 281; Ives v. Hulet, 12 Vt. 314.

scope of his authority, the corporation alone is liable, and the officer becomes personally liable only upon manifest intention to that effect.141 It is a general rule that an action for neglect of an official duty can be maintained only against ministerial officers.1+2 An officer charged with discretionary power is not liable in damages unless he act arbitrarily and in obvious violation of law.148

TORTS.

90. If the duty imposed upon an officer is a duty to the public, a failure to perform it or an inadequate or erroneous performance is a public injury, and must be redressed, if at all, in some form of public prosecution. But if, on the contrary, the duty is a duty to an individual, then the neglect to perform it properly is an individual wrong, and may support an individual action for damages.

It is a general rule that judicial officers acting within their jurisdiction cannot be held personally liable for the improper or erroneous performance of their duties.144 This rule embraces all officers exercising discretionary powers, and conse

141 Blanchard v. Blackstone, 102 Mass. 343; Hodges v. Runyan, 30 Mo. 491; Balcombe v. Northup, 9 Minn. 173 (Gil. 159); Ford v. Williams, 13 N. Y. 577, 67 Am. Dec. 83; Southworth v. Flanders, 33 La. Ann. 190; Andrews v. Estes, 11 Me. 267, 26 Am. Dec. 521; Mott v. Hicks, 1 Cow. (N. Y.) 513, 13 Am. Dec. 550; Gale v. Kalamazoo, 23 Mich. 344, 9 Am. Rep. 80.

142 Amy v. Supervisors, 11 Wall. (U. S.) 136, 20 L. Ed. 101; Nowell v. Wright, 3 Allen (Mass.) 166, 80 Am. Dec. 62; Blair v. Lantry, 21 Neb. 247, 31 N. W. 790; Piercy v. Averill, 37 Hun (N. Y.) 360. 143 Boutte v. Emmer, 43 La. Ann. 980, 9 South. 921, 15 L. R. A. 63; Pruden v. Love, 67 Ga. 190; McCarthy v. De Armit, 99 Pa. 63; Rounds v. Mumford, 2 R. I. 154; Baker v. State, 27 Ind. 485.

144 Moss v. Cummings, 44 Mich. 359, 6 N. W. 843; Jordan v. Hanson, 49 N. H. 199, 6 Am. Rep. 508; Lange v. Benedict, 73 N. Y. 12, 29 Am. Rep. 80; Mostyn v. Fabrigas, 1 Smith, Lead, Cas. (8th Ed.) 1027; People v. Bender, 36 Mich. 195; Wamesit Power Co. v. Allen, 120 Mass. 352.